Employment Law Cases
Meeting with employee prior to dismissal
The lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair.
Ms Charalambous worked in London for the National Bank of Greece as a relationship manager. In January 2019, she emailed a spreadsheet containing a breakdown of all private clients, commission, turnover, assets and other information to her union representative and her lawyer. The next day, she forwarded the email and attachment to her personal email address and her brother, who worked at another bank. The bank suspended Ms Charalambous pending a disciplinary investigation into the confidential client data breach and alerted the Financial Conduct Authority (which decided that no further regulatory action was required).
Mr Vathis, the manager of Ms Charalambous, held an investigation meeting with her. A different manager, Mr Hood, held a further two face-to-face disciplinary meetings with Ms Charalambous and her union representative. Mr Hood then wrote up a full report which he sent to Mr Vathis, who then made the decision summarily to dismiss Ms Charalambous without meeting her. Her internal appealed was rejected.
Ms Charalambous complained of unfair dismissal and detriment on whistleblowing grounds, ‘ordinary’ unfair dismissal and race discrimination. The tribunal dismissed all the claims. The reason for dismissal was her gross misconduct, not whistleblowing or race. Ms Charalambous was allowed to appeal to the EAT on one ground relating to the ‘ordinary’ unfair dismissal claim: namely, whether the dismissal had been procedurally fair.
The appeal was dismissed.
The EAT confirmed that a fair disciplinary process will normally involve an investigation carried out by one manager and then a separate and distinct disciplinary hearing carried out by an independent decision maker. That hearing would involve a meeting between the employee and the decision-maker.
However, in this case the EAT took into account the fact that Ms Charalambous did have two formally recorded meetings with Mr Hood where she was accompanied by her union representative and had an opportunity to set out her case, comment on the evidence and mitigating circumstances, all of which were set out in the minutes of the meetings. Mr Vathis had the benefit of the written record of both meetings before reaching the decision to dismiss.
The EAT recognised that having a meeting between the employee and the decision maker is desirable, it being good practice and something which many employers’ disciplinary procedures will expressly require. However, it was not a strict rule of law. What is essential is that the employee is given the chance to say what he or she wishes to say, and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer. Here it was open to the tribunal to decide that Ms Charalambous did have such an opportunity.
This is a useful illustration of how broadly tribunals can interpret the concept of ‘fairness’. In no way is the decision authority for the proposition that a dismissal can always be fair even if the dismissing manager does not meet the employee - but where the employee has been given the opportunity to tell their side of the story when faced with all the evidence then there may be more flexibility. What is required is a reasonable process in the circumstances – and circumstances can vary dramatically.